United States v. Clarke (33 U.S. 436)
APPEAL from the superior court of East Florida.
On the 4th of April 1829, the following petition was filed by the appellee in the superior court of Florida.
To the honourable the judge of the superior court for the district and territory aforesaid, in chancery sitting:
The petition of George J. F. Clarke, a native and inhabitant of the aforesaid territory, respectfully showeth—
That, upon the 6th day of April in the year of our Lord 1816, Don Jose Coppinger, then acting governor of the province of East Florida (by virtue of authority derived from the Spanish government), actually made to your petitioner, an absolute title in fee, of five miles square of land, which your petitioner avers, amounts to the number of sixteen thousand acres, on the west side of St John's river, near and at Black creek, and at a place called White Spring, for and in consideration of your petitioner having actually (before the day of the date of said grant) constructed a saw mill, to be impelled by animal power, which sufficiently appeared by proof to the said governor, as is fully evidenced by the tenor of the grant aforesaid, and as a reward for the industry and ingenuity of your petitioner in the constructing of the aforesaid saw mill, and for other causes and considerations in said grant set forth, all of which will more fully appear by reference to said grant, a certified translation whereof will in due time be filed herewith, and exhibited to this honourable court, and prayed to be made a part hereof.
Your petitioner further showeth, that, finding there was not vacant land at the place aforesaid suiting his wishes, sufficient to make the amount or number of acres aforesaid granted to him, he did, on the 25th day of January 1819, file a memorial before the aforesaid governor Coppinger, praying to be allowed to survey eight thousand acres of said grant on other vacant lands; and that, by a decree or grant of the aforesaid governor Don Jose Coppinger, bearing date on the 25th day of January 1819, the prayer of your petitioner was accorded to him, as will fully and at large appear, by reference to a translation of a document herewith filed.
Your petitioner further states that, in pursuance of, and in accordance with the grant first before referred to, and the subsequent grant amendatory thereto, the said lands were surveyed to him in three surveys. One of eight thousand acres, at a place in the original grant named, on the west shore of St John's river, beginning at a stake at Picolata ferry landing, and running south eighty-two degrees west one hundred and ten chains, to a pine; second line, north fifteen degrees west one hundred and twenty-three chains, to a pine; third line, north five degrees east one hundred and twenty-three chains, to a pine; fourth line, north thirty-five degrees west one hundred and seventy-five chains, to a pine; fifth line, north eighty-two degrees west one hundred and fifty-four chains, to a pine; sixth line, north sixty degrees west one hundred and seventy-four chains, to a pine; seventh line, north twenty-five degrees east one hundred and twelve chains, to a stake on the south side of Buckley creek at the mouth, and thence with the meanders of St John's river to the beginning. One other survey of three thousand acres, situated in and about Cone's hammock, to the south of Mizzell's, or Orange lake, beginning at a stake, and running thence, south seventy degrees east one hundred and sixty-three chains ninety-two links, to a pine; second line, south twenty degrees west one hundred and twenty-two chains fifty links, to a hickory; third line, north seventy degrees west one hundred and twenty-two chains fifty links, to a red bay; fourth line, north fifty-eight degrees west one hundred and forty-four chains, to a pine; fifth line, north twenty degrees, east ninety chains seventy-one links, to the beginning. And one other survey of five thousand acres, situated in Lang's hammock, on the south side of Mizzell's or Orange lake. Plats and certificates of all which surveys will in due time be filed and exhibited herein: the lands herein designated, all being and lying within the jurisdiction of this court.
Your petitioner further states, that his aforesaid claim was filed before the board of commissioners appointed to ascertain claims and titles to lands in East Florida, who, as he is informed and believes, have refused to recommend the same to the favourable notice of the United States government; and have rejected the same, but have not reported it forged or antedated. But your petitioner is advised and believes, and alleges and avers, that, by and under the usages, customs, laws and ordinances of the king of Spain, he is entitled to, and invested with a complete and full title in fee simple, to the lands so as aforesaid granted to him; and that, by the treaty between Spain and the United States, of the 22d February 1819, the United States are bound to recognise and confirm to him his aforesaid title, in as full and ample a manner as he had or held the same under the Spanish government. Without this, as far as your petitioner is advised, the United States are the rightful claimants to said lands.
And your petitioner prays, in consideration of the premises, that this honourable court will take jurisdiction of this his petition, and that a copy hereof, and a citation to show cause, &c. may be served on Thomas Douglass, Esquire, United States district attorney for this district, pursuant to the provisions of the statute in such cases made and provided; and, finally, that your honour will decree to your petitioner a confirmation of his title to the lands in this his petition claimed, and all such further and other relief as in equity he is entitled to; and your petitioner, as in duty, &c.
On the 25th January 1819, the claimant presented a petition to the governor of the province, setting forth that the land in the neighbourhood of White Spring, which had been granted to him, did not answer his expectation, and praying that the surveyor appointed to survey the land granted to him, might be directed to alter the survey, so as to reduce the square of five miles to the depth of about two and a half miles, by its original length of five miles; and that the surveyor might be further instructed to survey the residue of the quantity granted to the petitioner, 'in the hammock, called Lang's and Cone's, situated on the south of Mizzell's lake.' On the same day, the 25th day of January 1819, the governor granted the request of the petitioner.
On the 24th of February 1819, the surveyor gave a certificate, that he had surveyed to the petitioner, eight thousand acres of land, west of the river St John's, beginning at the mouth of Berkley creek, below White Spring, and following upwards the margin of said river, &c.
On the 10th of March 1819, the said surveyor gave another certificate, that he had surveyed for the petitioner, five thousand acres of land, in the place called Lang's hammock, situated south of Mizzell Lagoon, west of the river St John's, in part of a greater quantity granted to the said petitioner, on the 6th of April 1816.
On the 12th of March 1819, the said surveyor gave another certificate, in which he states that he had surveyed to the petitioner, three thousand acres of land, in the place called Cone's hammock, being the complement of a greater quantity which was granted to him on the 6th of April 1816.
The following copies of the petition, decree and grant were annexed to the petition.
(Translation.) Memorial. To the Governor: Don George Clarke, a native of this province, with due respect, presents himself to your honour, and says that, having noticed the constant scarcity of sawed lumber in this province, and particularly at this town, which, in consequence of the scantiness of this indispensable material, has but half of the population that it ought to have; and induced by the general advantages that may result from mills worked by animals over those worked by water, wind, or fire, because they are less expensive, more secure, and adapted to any station, he has accomplished one at this town of his own invention and workmanship, which, with four horses, saws eight lines at a time, at the rate of two thousand superficial feet per day. Therefore, he prays that your honour will be pleased to grant him a title of property to the quantity of land your honour had thought proper to assign to the water mills for their continual supply, forming a quantity equivalent to a five mile square; which lands he solicits on the western part of the St John's river, above Black creek, at a place entirely vacant, known by the name of White Spring. He hopes to receive this grant from your honour's kindness, because, by this proof of his industry and labour, he has given to the public an invention that by its expediency, simplicity, and cheapness, offers from this source of lumber the most considerable advantages not only to the royal revenue, but to the public also, by the labour of cutting, use, and commerce.
Fernandina, March 16, 1816.
P.D. For proof of what I have stated to your honour, I herewith present a certificate of the civil and military commander of this town, ut supra.
GEORGE J. F. CLARKE.
Grant to Clarke for sixteen thousand acres. Decree. St Augustine, April 3, 1816. This government have granted lands to other individuals, inhabitants of this province, who have solicited them for the cutting of timber and the use of the same for the saw mills or machines that they intend to establish, but with the condition of being without effect until these establishments be made. And whereas Don George Clarke proves, by certificate of the commander of the town of Fernandina, that he has constructed a mill of great utility, that offers advantages to that settlement, which it is the duty and interest of government to promote in compliance with royal orders despatched for that purpose, rewarding the industrious and laborious as an example to encourage other inhabitants, and procure the increase of invention: it is granted to the aforesaid Don George Clarke, the five miles square of land that he solicits, of which a title shall be issued comprehending the place, and under the boundaries set forth in this petition, without injury to a third person.
(Translation.) Title of property of five miles square of land to Don George Clarke. Don Jose Coppinger, lieutenant colonel of the royal army, civil and military governor pro tempore, and chief of the royal domain of this city and its province, &c.: Whereas, by a royal order communicated to this government, on the 29th October 1790, by the captain general of the island of Cuba and the two Floridas, it is provided, among other things, that, to foreigners who of their free will present themselves to swear allegiance to our sovereign, there be granted to them lands gratis in proportion to the workers that each family may have; and whereas Don George Clarke, inhabitant of the town of Fernandina, has presented himself, manifesting that he has constructed, from his own ingenuity, a machine that, with four horses, saws eight lines at one time, cutting two thousand superficial feet of timber in a day, and soliciting, in virtue thereof, a grant in absolute property of five miles square of land for a stock and supply of timber, which is the portion that has been granted for water saw mills; and having pointed out a competent tract of the west side of St John's river, above Black creek, at a place called White Spring, that is vacant, which establishment of said machine has been proved by a certificate of the civil and military commandant of the town of Fernandina: therefore, and in consideration of the advantages arising from such improvements in this said province, and in order that, by rewarding the industrious and ingenious, it may serve as an example and stimulus to other inhabitants, I have found proper, by my decree of the third of the present month, to order the issue of a competent title of property of said five miles square of land, as will appear more fully by the proceedings had on the occasion, and existing in the archives of the present notary. Therefore, I have resolved to grant, as in the name of his majesty I do grant, to the said George Clarke, the aforementioned five miles square of land for himself, his heirs, and successors, in absolute property; and I do issue, by these presents, a competent title, whereby I separate the royal domain from the right and dominion it had to said lands, and I cede and transfer the same to the said George Clarke, his heirs and successors, to possess them as their own, and to use and enjoy them without any incumbrance or tribute whatever, with all their inlets, outlets, uses, customs, rights, and services, which they have had, have, and by custom or law may have, or in any wise may appertain to them; and at their will, to sell, cede, transfer, and dispose of them at their pleasure. To all which I interpose my authority as I can, and and of right ought to do, by virtue of these presents and the sovereign will. Given under my signature, and countersigned by the notary of government and royal domain in this city of St Augustine of Florida, on the 6th April 1816.
By order of his Excellency.
JUAN DE ENTRALGO,
Notary pro tem. of Gov. and Royal Domain.
The answer of the United States district attorney expressly denies that by and under the usages, customs, laws, and ordinances of the king of Spain, the petitioner is entitled to, and vested with a full and complete title in fee simple, or any other title whatever to the said land, and that the supposed grant to the said petitioner is entirely null and void.
The answer further denies, that governor Coppinger had any power or authority whatever to make such a grant; and that if such a grant was ever made to the petitioner, it was made in violation of the laws, ordinances, and royal regulations of the Spanish government.
The decree of the court below confirmed the claim of the petitioner not to the land described, and which, if any, was vested in the said petitioner by the grant of governor Coppinger, dated the 6th of April 1816, but other lands described by the surveyor in his several certificates, dated the 24th of February, and 10th and 12th of March 1819.
The case was argued by Mr Call, for the United States; and by Mr Berrien and Mr Wilde, for the appellee.
The counsel for the United States presented the following grounds for the consideration of the court, and on which they contend the decree of the court below should be reversed.
1. The petitioner has not described on the record such a case as is embraced by the jurisdiction expressly conferred by statute on the superior court of East Florida.
2. The petitioner cannot show that he has such a claim to land in Florida, as gives him a right to prosecute his suit for its confirmation against the government under the provisions of the acts of congress of 1824 and 1828, conferring jurisdiction in certain cases on the superior courts of Florida.
3. The governor of the province of East Florida had no power or authority under the laws, ordinances and royal regulations of Spain to make the grant in question.
4. If the governor possessed the power of making the said grant on the 6th day of April 1816, the eighth article of the treaty having barred all grants made subsequent to the 24th of January 1819, he had no power on the 25th of January 1818, to substitute other lands of a superior quality at a remote distance for those which were granted to the petitioner on the 6th of April 1816.
5. The change of location on the 25th of January 1819, was equivalent to the power of making a new grant, and the act is void under the provisions of the treaty. The lands claimed by the petitioner, and embraced in the second and third surveys, were vacant lands on the 24th of January 1818, and were by the second article of the treaty of 1819 transferred to the United States. 
The counsel for the appellee considered that the several points arising in this case have been already decided by this court in the cases of The United States v. Arredondo, 6 Peters 691, and The United States v. Percheman, 7 Peters 51, and contended:
1. That the grant of governor Coppinger vests in the claimant a full and absolute title in fee to the premises in controversy.
2. That the authority to grant land to foreigners is in addition to, and does not exclude, the right to grant for good cause to the subjects of Spain.
3. That the general authority of the governor being ascertained, he alone was competent to decide upon the sufficiency of the considerations on which this grant was founded.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
^1 Mr Call, counsel for the United States, afterwards laid before the court a printed argument, applicable to this and the subsequent cases. It will be found in the appendix to this volume.